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National Emission Standards for Hazardous Air Pollutants for Source Categories: General Provisions; and Requirements for Control Technology Determinations for Major Sources in Accordance with Clean Air Act Sections, Sections 112(g) and 112(j)
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 9, 2002 (Volume 67, Number 236)]
[Proposed Rules]
[Page 72875-72888]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de02-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7419-6]
RIN 2060--AK52
National Emission Standards for Hazardous Air Pollutants for
Source Categories: General Provisions; and Requirements for Control
Technology Determinations for Major Sources in Accordance with Clean
Air Act Sections, Sections 112(g) and 112(j)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; amendments.
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SUMMARY: In this action, we are proposing specific amendments to the
General Provisions for national emission standards for hazardous air
pollutants (NESHAP), and to the rule establishing requirements for
case-by-case determinations under Clean Air Act (CAA) section 112(j).
We are proposing to establish a new timetable for the submission of
section 112(j) Part 2 applications which is derived from our agreed
timetable for promulgation of the remaining NESHAP. This new timetable
for Part 2 applications is intended both to avoid the expenditure of
unnecessary resources by affected sources and permitting authorities,
and to create new incentives for prompt completion of the remaining
standards. We are also proposing to make several changes in the section
of the General Provisions rule that establishes general procedures for
preparation, maintenance, and periodic revision of startup, shutdown,
and malfunction (SSM) plans. These amendments are being proposed
pursuant to a settlement agreement concerning a petition for judicial
review of the prior amendments to these rules published on April 5,
2002. We are also proposing to revise a recordkeeping provision which
we adopted in response to comments we received on the prior amendments
because we have concluded that the recordkeeping provision should be
more narrow in applicability.
DATES: Comments. Submit comments on or before January 20, 2003.
Public Hearing. If anyone contacts us requesting to speak at a
public hearing by December 16, 2002, a public hearing will be held on
December 19, 2002.
ADDRESSES: Comments. Written comments may be submitted to: Air and
Radiation Docket and Information Center, Attention Docket Number OAR-
2002-0038, Part 63 General Provisions (Subpart A) and Section 112(j)
Regulations (Subpart B) Litigation Settlement Amendments II, Mailcode
6102T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.
Public Hearing. If a public hearing is held, it will be held at 10
a.m. on December 19, 2002 in our EPA facility complex, 109 T.W.
Alexander Drive, Research Triangle Park, North Carolina, or at an
alternate site nearby.
FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, Emission Standards
Division (C504-05), U.S. EPA, Research Triangle Park, North Carolina
27711, telephone (919) 541-5262, e-mail colyer.rick@epa.gov.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Categories and entities potentially regulated by this action
include all section 112 source categories listed under section 112(c)
of the CAA.
Industry Group: Source Category
Fuel Combustion:
Coal- and Oil-fired Electric Utility Steam Generating Units
Combustion Turbines
Engine Test Facilities
Industrial Boilers
Institutional/Commercial Boilers
Process Heaters
Reciprocating Internal Combustion Engines
Rocket Testing Facilities
Non-Ferrous Metals Processing:
Primary Aluminum Production
Primary Copper Smelting
Primary Lead Smelting
Primary Magnesium Refining
Secondary Aluminum Production
Secondary Lead Smelting
Ferrous Metals Processing:
Coke Ovens: Charging, Top Side, and Door Leaks
Coke Ovens: Pushing, Quenching, Battery Stacks
Ferroalloys Production: Silicomanganese and Ferromanganese
Integrated Iron and Steel Manufacturing
Iron Foundries
Steel Foundries
Steel Pickling--HCl Process Facilities and Hydrochloric Acid
Regeneration
Mineral Products Processing:
Asphalt Processing
Asphalt Roofing Manufacturing
Asphalt/Coal Tar Application--Metal Pipes
Brick and Clay Products Manufacturing
Ceramics Manufacturing
Lime Manufacturing
Mineral Wool Production
Portland Cement Manufacturing
Refractories Manufacturing
Taconite Iron Ore Processing
Wool Fiberglass Manufacturing
Petroleum and Natural Gas Production and Refining:
Oil and Natural Gas Production
Natural Gas Transmission and Storage
Petroleum Refineries--Catalytic Cracking Units, Catalytic Reforming
Units, and Sulfur Plant Units
Petroleum Refineries--Other Sources Not Distinctly Listed
Liquids Distribution:
Gasoline Distribution (Stage 1)
Marine Vessel Loading Operations
Organic Liquids Distribution (Non-
[[Page 72876]]
Gasoline)
Surface Coating Processes:
Aerospace Industries
Auto and Light Duty Truck (Surface Coating)
Large Appliance (Surface Coating)
Magnetic Tapes (Surface Coating)
Manufacture of Paints, Coatings, and Adhesives
Metal Can (Surface Coating)
Metal Coil (Surface Coating)
Metal Furniture (Surface Coating)
Miscellaneous Metal Parts and Products (Surface Coating)
Paper and Other Webs (Surface Coating)
Plastic Parts and Products (Surface Coating)
Printing, Coating, and Dyeing of Fabrics
Printing/Publishing (Surface Coating)
Shipbuilding and Ship Repair (Surface Coating)
Wood Building Products (Surface Coating)
Wood Furniture (Surface Coating)
Waste Treatment and Disposal:
Hazardous Waste Incineration
Municipal Solid Waste Landfills
Off-Site Waste and Recovery Operations
Publicly Owned Treatment Works (POTW)
Site Remediation
Agricultural Chemicals Production:
Pesticide Active Ingredient Production
Fibers Production Processes:
Acrylic Fibers/Modacrylic Fibers Production
Spandex Production
Food and Agriculture Processes:
Manufacturing of Nutritional Yeast
Solvent Extraction for Vegetable Oil Production
Pharmaceutical Production Processes:
Pharmaceuticals Production
Polymers and Resins Production:
Acetal Resins Production
Acrylonitrile-Butadiene-Styrene Production
Alkyd Resins Production
Amino Resins Production
Boat Manufacturing
Butyl Rubber Production
Cellulose Ethers Production
Epichlorohydrin Elastomers Production
Epoxy Resins Production
Ethylene-Propylene Rubber Production
Flexible Polyurethane Foam Production
Hypalon (tm) Production
Maleic Anhydride Copolymers Production
Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene Production
Methyl Methacrylate-Butadiene-Styrene Terpolymers Production
Neoprene Production
Nitrile Butadiene Rubber Production
Nitrile Resins Production
Non-Nylon Polyamides Production
Phenolic Resins Production
Polybutadiene Rubber Production
Polycarbonates Production
Polyester Resins Production
Polyether Polyols Production
Polyethylene Terephthalate Production
Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polystyrene Production
Polysulfide Rubber Production
Polyvinyl Acetate Emulsions Production
Polyvinyl Alcohol Production
Polyvinyl Butyral Production
Polyvinyl Chloride and Copolymers Production
Reinforced Plastic Composites Production
Styrene-Acrylonitrile Production
Styrene-Butadiene Rubber and Latex Production
Production of Inorganic Chemicals:
Ammonium Sulfate Production--Caprolactam By-Product Plants
Carbon Black Production
Chlorine Production
Cyanide Chemicals Manufacturing
Fumed Silica Production
Hydrochloric Acid Production
Hydrogen Fluoride Production
Phosphate Fertilizers Production
Phosphoric Acid Manufacturing
Production of Organic Chemicals:
Ethylene Processes
Quaternary Ammonium Compounds Production
Synthetic Organic Chemical Manufacturing
Miscellaneous Processes:
Benzyltrimethylammonium Chloride Production
Carbonyl Sulfide Production
Chelating Agents Production
Chlorinated Paraffins Production
Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Ethylidene Norbornene Production
Explosives Production
Flexible Polyurethane Foam Fabrication Operations
Friction Materials Manufacturing
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Hydrazine Production
Industrial Dry Cleaning (Perchloroethylene)--Dry-to-dry Machines
Industrial Dry Cleaning (Perchloroethylene)--Transfer Machines
Industrial Process Cooling Towers
Leather Finishing Operations
Miscellaneous Vicose Processes
OBPA/1,3-Diisocyanate Production
Paint Stripping Operations
Photographic Chemicals Production
Phthalate Plasticizers Production
Plywood and Composite Wood Products
Pulp and Paper Production
Rubber Chemicals Manufacturing
Rubber Tire Manufacturing
Semiconductor Manufacturing
Symmetrical Tetrachloropyridine Production
Wet-formed Fiberglass Mat Production
Categories of Area Sources:
Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Dry-to-Dry Machines
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Hazardous Waste Incinerators
Portland Cement Production
Secondary Aluminum Production
Secondary Lead Smelting
This list is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether you are regulated by this action, you
should examine your source category specific section 112 regulation. If
you have any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
Docket
EPA has established an official public docket for this action under
Docket ID No. OAR-2002-0038. The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. Although a part
of the official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The official public docket is the collection of
materials that is available for public viewing at the Part 63 General
Provisions (Subpart A)
[[Page 72877]]
and Section 112(j) Regulations (Subpart B) Litigation Settlement
Amendments II Docket in the EPA Docket Center, (EPA/DC) EPA West, Room
B102, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Reading
Room is (202) 566-1744, and the telephone number for the Part 63
General Provisions (Subpart A) and Section 112(j) Regulations (Subpart
B) Litigation Settlement Amendments II Docket is (202) 566-1742). A
reasonable fee may be charged for copying docket materials.
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/. An electronic version of the public
docket is available through EPA's electronic public docket and comment
system, EPA Dockets. You may use EPA Dockets at http://www.regulations.gov/
to submit or view public comments, access the index listing of
the contents of the official public docket, and to access those
documents in the public docket that are available electronically. Once
in the system, select ``search,'' then key in the appropriate docket
identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility previously identified.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify the appropriate docket identification number in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
EPA is not required to consider these late comments. If you wish to
submit CBI or information that is otherwise protected by statute,
please follow the instructions below. Do not use EPA Dockets or e-mail
to submit CBI or information protected by statute.
If you submit an electronic comment as prescribed below, EPA
recommends that you include your name, mailing address, and an e-mail
address or other contact information in the body of your comment. Also
include this contact information on the outside of any disk or CD ROM
you submit and in any cover letter accompanying the disk or CD ROM.
This ensures that you can be identified as the submitter of the comment
and allows EPA to contact you in case EPA cannot read your comment due
to technical difficulties or needs further information on the substance
of your comment. EPA's policy is that EPA will not edit your comment,
and any identifying or contact information provided in the body of a
comment will be included as part of the comment that is placed in the
official public docket and made available in EPA's electronic public
docket. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.
Your use of EPA's electronic public docket to submit comments to
EPA electronically is EPA's preferred method for receiving comments. Go
directly to EPA Dockets at http://www.epa.gov/edocket and follow the
online instructions for submitting comments. To access EPA's electronic
public docket from the EPA Internet Home Page, select ``Information
Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select
``search,'' and then key in Docket ID No. OAR-2002-0038. The system is
an ``anonymous access'' system, which means EPA will not know your
identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
Comments may be sent by electronic mail (e-mail) to a-and-r-
Docket@epa.gov, Attention Docket ID No. OAR-2002-0038. In contrast to
EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the Docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket and made available in EPA's electronic public docket.
You may submit comments on a disk or CD ROM. These electronic
submissions will be accepted in WordPerfect or ASCII file format. Avoid
the use of special characters and any form of encryption.
Send your comments to: Part 63 General Provisions (Subpart A) and
Section 112(j) Regulations (Subpart B) Litigation Settlement Amendments
II, U.S. EPA, Mailcode: 6102T, 1200 Pennsylvania Ave., NW, Washington,
DC 20460, Attention Docket ID No. OAR-2002-0038.
Deliver your comments to: Public Reading Room, Room B102, EPA West,
1301 Constitution Avenue, NW, Washington, DC, Attention Docket ID No.
OAR-2002-0038. Such deliveries are only accepted during the Docket's
normal hours of operation.
Fax your comments to 202-566-1741, Attention Docket ID. No. OAR-
2002-0038.
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send or deliver information identified as CBI only to the following
address: Attention: Mr. Rick Colyer, c/o OAQPS Document Control
Officer, Mailcode C404-02, U.S. EPA, Research Triangle Park, NC 27711,
Attention Docket ID No. OAR-2002-
[[Page 72878]]
0038. You may claim information that you submit to EPA as CBI by
marking any part or all of that information as CBI (if you submit CBI
on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and
then identify electronically within the disk or CD ROM the specific
information that is CBI). Information so marked will not be disclosed
except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comments that includes
any information claimed as CBI, a copy of the comments that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
Public Hearing
Persons interested in presenting oral testimony or inquiring as to
whether a hearing is to be held should contact Ms. Janet Eck, U.S. EPA,
Mailcode C539-03, Research Triangle Park, NC 27711, telephone (919)
541-7946, no later than December 17, 2002. Persons interested in
attending the public hearing must also contact Ms. Eck to verify the
time, date, and location of the hearing. The public hearing will
provide interested parties the opportunity to present data, views, or
arguments concerning these proposed amendments.
Worldwide Web (WWW)
In addition to being available in the docket, an electronic copy of
today's proposed rule amendments will also be available on the WWW
through the Technology Transfer Network (TTN). Following signature, a
copy of the rule will be posted on the TTN's policy and guidance page
for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg.
The TTN provides information and technology exchange in various
areas of air pollution control. If more information regarding the TTN
is needed, call the TTN HELP line at (919) 541-5384.
Applicable Law
This rulemaking is being undertaken pursuant to the procedures
established by CAA section 307(d). The special procedures for
rulemakings governed by section 307(d) were utilized when EPA
originally promulgated, and when EPA subsequently amended, each of the
rules to which this proposal applies. The Administrator has
specifically determined that it is appropriate to utilize the
procedures in section 307(d) for this rulemaking.
Outline
The information presented in this preamble is organized as follows:
I. Background
A. General Provisions
B. CAA Section 112(j) Provisions
C. The Sierra Club Litigation
D. Review of Proposed Settlement Under CAA Section 113(g)
II. Proposed Amendments to the General Provisions
III. Proposed Amendments to the Section 112(j) Provisions
A. New Schedule for Part 2 Applications
B. Requests for Applicability Determination
C. Prior Section 112(g) Determinations
D. Content of Part 2 Applications
IV. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
B. Executive Order 13132, Federalism
C. Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments
D. Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks
E. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
F. Unfunded Mandates Reform Act of 1995
G. Regulatory Flexibility Act (RFA) as Amended by Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
et seq.
H. Paperwork Reduction Act
I. National Technology Transfer and Advancement Act of 1995
I. Background
A. General Provisions
Section 112 of the CAA requires us to list categories and
subcategories of major sources and area sources of Hazardous Air
Pollutants (HAP) and to establish NESHAP for the listed source
categories and subcategories. Major sources of HAP are those that have
the potential to emit equal to or greater than 10 tons/yr of any one
HAP or 25 tons/yr of any combination of HAP. Area sources of HAP are
those sources that do not have potential to emit equal to or greater
than 10 tons/yr of any one HAP and 25 tons/yr of any combination of
HAP.
The General Provisions in 40 CFR part 63 establish the framework
for emission standards and other requirements developed pursuant to
section 112 of the CAA. The General Provisions eliminate the repetition
of general information and requirements in individual NESHAP by
consolidating all generally applicable information in one location.
They include sections on applicability, definitions, compliance dates
and requirements, monitoring, recordkeeping and reporting, among
others. In addition, they include administrative sections concerning
actions that the EPA (or delegated authorities) must take, such as
making determinations of applicability, reviewing applications for
approval of new construction, responding to requests for extensions or
waivers of applicable requirements, and generally enforcing national
air toxics standards. The General Provisions become applicable to a CAA
section 112(d) source category rule when the source category rule is
promulgated and becomes effective.
The NESHAP General Provisions were first promulgated on March 16,
1994 (59 FR 12408). We subsequently proposed a variety of amendments to
that initial rule, based in part on settlement negotiations with
industrial trade organizations which had sought judicial review of the
rule and in part on our practical experience in developing and
implementing maximum achievable control technology (MACT) standards
under the General Provisions (66 FR 16318, March 23, 2001). We then
promulgated final amendments to the General Provisions pursuant to that
proposal (67 FR 16582, April 5, 2002).
B. CAA Section 112(j) Provisions
The 1990 Amendments to section 112 of the CAA include a new section
112(j), which is entitled ``Equivalent Emission Limitation by Permit.''
Section 112(j)(2) provides that the provisions of section 112(j) apply
if the EPA misses a deadline for promulgation of a standard under
section 112(d) established in the source category schedule for
standards. After the effective date of a title V permit program in a
State, section 112(j)(3) requires the owner or operator of a major
source in a source category, for which the EPA failed to promulgate a
section 112(d) standard, to submit a permit application 18 months after
the missed promulgation deadline.
We first promulgated a rule to implement section 112(j) on May 20,
1994 (59 FR 26429). We subsequently proposed a variety of amendments to
that initial rule, based in part on settlement negotiations with
industrial trade organizations which had sought judicial review of the
rule and in part on our own further evaluation of the existing
procedures (66 FR 16318, March 23, 2001). We then promulgated
[[Page 72879]]
final amendments to the section 112(j) rule, along with our final
amendments to the General Provisions (67 FR 16582, April 5, 2002).
C. The Sierra Club Litigation
We promulgated the final rule amending the MACT General Provisions
and the requirements for case-by-case determinations under Clean Air
Act section 112(j) on April 5, 2002 (67 FR 16582). The Sierra Club
filed a petition seeking judicial review of that final rule on April
25, 2002, Sierra Club v. U.S. Environmental Protection Agency, No. 02-
1135 (D.C. Circuit). Sierra Club also filed a petition seeking
administrative reconsideration of certain provisions in the final rule,
pursuant to CAA section 307(d)(7)(B).
Shortly after the filing of the petition, EPA commenced discussions
with Sierra Club concerning a settlement agreement. We reached initial
agreement with Sierra Club on the terms of a settlement and lodged the
tentative agreement with the court on August 15, 2002. Under the
proposed settlement, we agreed to propose a rule to make specified
amendments to the General Provisions and section 112(j) rules no later
than 2 months after signature and to take final action on the proposed
amendments within 7 months after signature.
D. Review of Proposed Settlement Under CAA Section 113(g)
As required by section 113(g) of the CAA, EPA published a notice in
the Federal Register affording interested persons an opportunity to
comment on the terms of the proposed settlement in Sierra Club v. U.S.
Environmental Protection Agency, No. 02-1135 (D.C. Circuit) (67 FR
54804, August 26, 2002). In response to that notice, we received 110
timely comments, the vast majority of which opposed one or more
provisions of the proposed settlement.
While we do not believe we are legally required to discuss or
summarize our review of the comments on the proposed settlement we
received as part of the process required by section 113(g), we think it
is appropriate in this instance to describe our assessment of and
response to certain of these comments.
Virtually all of the commenters expressed concern about the
practical consequences of the proposal to reduce the time between the
section 112(j) Part 1 and Part 2 applications from 24 months to 12
months. We agree with the commenters that this approach would have
resulted in wasteful expenditures by the applicants and the permitting
agencies to prepare and to process permit applications which in all
likelihood would never have been acted upon. Given the strong
opposition to this approach reflected in the comments both by industry
sources and organizations and by State and local permitting
authorities, we were pleased when Sierra Club agreed to discuss
modifying the proposed settlement to establish an alternative timetable
for submission of Part 2 section 112(j) applications.
Organizations representing the State and local permitting
authorities played a very helpful role in the discussions concerning a
revised settlement. These organizations noted that EPA had already
reached an agreement with Sierra Club on a schedule for promulgation of
all remaining MACT standards that were included on the original
schedule established pursuant to CAA section 112(e)(1) and (3). We
anticipate that this agreed upon schedule for promulgation of the
remaining MACT standards will be incorporated in a forthcoming consent
decree in Sierra Club v. Whitman, 01-1337 (D.D.C.). The State and local
governmental organizations suggested that a timetable which would
require submission of section 112(j) Part 2 applications only if the
agreed upon schedule is not met would both eliminate the expenditure of
significant resources on an ultimately futile process and create new
incentives for EPA and the other stakeholders to cooperate in meeting
the promulgation schedule.
After Sierra Club agreed to consider the alternative approach
suggested by the State and local governmental organizations, EPA and
Sierra Club then negotiated a revised settlement based on that
approach. Under the timetable we are proposing pursuant to the revised
settlement, section 112(j) Part 2 applications for affected sources in
those categories for which MACT standards are scheduled to be
promulgated while this rulemaking is pending will be due on May 15,
2003, and section 112(j) Part 2 applications for affected sources in
categories for which the MACT standards are scheduled to be promulgated
thereafter will be due 60 days after the corresponding scheduled
promulgation dates.
In the revised settlement, we have also agreed to propose the same
amendments to the General Provisions concerning startup, shutdown, and
malfunction (SSM) plans which were set forth in the original
settlement. Although we received numerous comments opposing these
amendments as well, we believe that many of these comments materially
misconstrued both the intent and the effect of these proposed
amendments. In any case, we note that there will be a full opportunity
for those who have concerns regarding either the need for or the effect
of these amendments to comment during this rulemaking. We also believe
these comments are likely to be more constructive and appropriately
focused when the commenters have had an opportunity to review our
explanation of the basis for these proposed amendments set forth below.
The EPA and Sierra Club executed a final settlement agreement in
Sierra Club v. U.S. Environmental Protection Agency, No. 02-1135 (DC
Circuit), and filed it with the Court on November 26, 2002. This
rulemaking is being conducted in accordance with the provisions of that
final agreement.
II. Proposed Amendments to the General Provisions
In today's action, we are proposing to make several changes in the
section of the General Provisions rule that establishes general
procedures for preparation, maintenance, and periodic revision of SSM
plans. We consider these proposed revisions to be modest in character,
and we believe they are generally consistent with the policies
articulated in the preamble when we proposed the last set of amendments
concerning SSM plans. We are also proposing to revise a new
recordkeeping provision which we adopted in the prior rulemaking in
response to a comment we received, because we have concluded that the
new recordkeeping provision is too broad in its effect.
We are proposing some minor changes in the language in 40 CFR
63.6(e)(1)(i) to correct a potential problem in interpreting the
relationship between the general duty to minimize emissions established
by that section and a facility's compliance with its SSM plan. That
section was modified in the last rulemaking because it appeared at that
time to impose on a source a general duty to further reduce emissions,
even when the source is already in full compliance with the applicable
MACT standards. We deemed this result to be unreasonable and made
corresponding changes in the language of the rule. We emphasize that
nothing in today's proposal is intended to alter our determination that
the general duty to minimize emissions is satisfied when emission
levels required by the MACT standard have been achieved.
However, as part of these changes, we adopted some language which
could be construed as contrary to the policies regarding the
relationship between the general duty to minimize emissions and
[[Page 72880]]
SSM plans which we stated in the preamble of the proposal of the
original amendments. We note at the outset that SSM plans must be
drafted in a manner which satisfies the general duty to minimize
emissions (40 CFR 63.6(e)(3)(i)(A)). Thus, compliance with a properly
drafted SSM plan during a period of startup, shutdown, or malfunction
will necessarily also constitute compliance with the duty to minimize
emissions, even though compliance with the MACT standards themselves
during a period of startup, shutdown, or malfunction may not be
practicable. However, in the proposal preamble to the original
amendments, we stated explicitly that ``compliance with an inadequate
or improperly developed SSM plan is no defense for failing to minimize
emissions'' (66 FR 16327, March 23, 2001). We note that this
understanding of the effect of the amendments was explicitly restated
in comments by the organizations that represent the agencies that
generally enforce these requirements, the State and Territorial Air
Pollution Program Administrators (STAPPA) and the Association of Local
Air Pollution Control Officials (ALAPCO). See Docket A-2001-02.
Sierra Club subsequently pointed out to us that the actual language
of the section as promulgated could be construed to indicate that a
facility that complies with its SSM plan--regardless of whether the
plan is inadequate or improperly developed--thereby satisfies its
general duty to minimize emissions. We did not intend this result. We
believe such a construction could encourage potential abuse,
particularly because SSM plans do not have to be reviewed or approved
by the permitting authority before they take effect, and because such
plans may also be revised by the facility without prior notice to the
permitting authority. The revisions to 40 CFR 63.6(e)(1)(i) which we
are proposing today are intended to assure that this section is not
construed in this manner. Nothing in these revisions is intended either
to change the general principle that compliance with a MACT standard is
not mandatory during periods of startup, shutdown, or malfunction, or
to require a source to further minimize emissions during periods of
startup, shutdown, or malfunction once it has achieved levels which
would constitute compliance with the MACT standard at other times.
We are also proposing some changes to 40 CFR 63.6(e)(3)(v), the
section that governs submission of SSM plans to the EPA Administrator,
and to the State or local permitting authorities which operate as the
Administator's authorized representatives. The present rule provides
that the current SSM plan must be made available upon request to the
Administrator for ``inspection and copying.'' The ``Administrator'' is
defined to include a State which has received delegation and is
therefore the Administrator's ``authorized representative'' (40 CFR
63.2).
We stated in the preamble of the proposal for the previous
amendments that the permit writer or the Administrator may also require
submission of the SSM plan (66 FR 16326, March 23, 2001). This is
sensible because the SSM plan is an integral part of the permit file,
regardless of whether the plan is physically available at the EPA
Regional Office or the permitting authority that has received
delegation or is maintained only at the affected source. However, we
note that the present rule does not expressly require that SSM plans be
submitted to the Administrator or to the permitting authority upon
request. This potential omission was also noted in previous comments by
STAPPA/ALAPCO. See Docket A-2001-02.
SSM plans are developed in connection with individual MACT
standards promulgated under CAA section 112 and are therefore covered
by CAA section 114(a). Under CAA section 114(c) and 40 CFR
70.4(b)(3)(viii), information in SSM plans must be made available to
the public, unless the submitter makes a satisfactory showing that
disclosure would divulge methods or processes that are entitled to
protection under the Trade Secrets Act, 18 U.S.C. 1905. SSM plans are
considered to be submitted to the Administrator under CAA Section 114
even if they are submitted to a State or local agency acting on the
Administrator's behalf (40 CFR 2.301(b)(2)).
Sierra Club has expressed concern about the adequacy of the
provisions in the present rule to assure the degree of public access to
SSM plans required by law. In particular, Sierra Club is concerned that
some permitting authorities might not construe the rule to require that
an SSM plan be obtained from the affected source when it is requested
by a member of the public, and that the rule does not expressly require
submission of an SSM plan when the permitting authority or
Administrator requests it. Although the rule clearly requires that such
plans must be made available for inspection and copying by EPA or the
permitting authority, Sierra Club believes that interested members of
the public may encounter protracted delays in obtaining access to the
non-confidential portions of an SSM plan.
We understand these concerns about the practicality of public
access under the present system, and we have agreed to propose some
revisions to the rule to facilitate better public access. The new
language requires sources to submit a copy of the SSM plan to the
permitting authority at the time it is first adopted and when it is
subsequently revised. In most instances, revised versions of the SSM
plan may be submitted with the semiannual report required by 40 CFR
63.10(d)(5). Under our proposal, the source may elect to submit the SSM
plan in an electronic format. If the submitter claims that any portion
of an SSM plan, or any revision of an SSM plan, is CBI entitled to
protection under section 114(c) of the CAA or 40 CFR 2.301, the
material which is claimed as confidential must be clearly designated in
the submission.
While the applicable law generally requires that we provide public
access to those portions of SSM plans which are not entitled to
confidentiality under the Trade Secrets Act, we note that it is
hypothetically possible that some information in a particular SSM plan
would be deemed to be sensitive from a Homeland Security perspective.
In most instances, we think that such sensitive information would also
be entitled to confidential treatment under CAA section 114(c).
However, we note that the entire Federal government is presently
reviewing public access requirements to assure that they are compatible
with Homeland Security, and it is possible that we may in the future
propose other changes in public access to SSM plans as part of this
important effort.
We note that many sources have already adopted SSM plans, and that
the language we are proposing does not establish a specific
transitional process for submission of those existing plans to
permitting authorities. If we adopt the proposed changes, we want to
minimize the burden and disruption associated with this transition, and
we are requesting comment on how this may best be accomplished. One
option would be to provide a specific time period within which the
existing plans must be submitted. Another option would be to require
that the plans be submitted as part of the next semiannual compliance
report.
We are also proposing a change to 40 CFR 63.6(e)(3)(vii). The
current rule provides that EPA or the permitting authority ``may''
require that an SSM plan be revised if certain specified deficiencies
are found. However, we cannot envision any circumstance
[[Page 72881]]
where revision of an SSM plan should not be mandatory if it is
specifically found to be deficient by EPA or the permitting authority
according to one of the criteria set forth in this section. Therefore,
we have agreed to propose to change the language to make such revisions
mandatory rather than discretionary.
We are required to propose all of the foregoing amendments to the
SSM plan provisions in the MACT General Provisions rule by the final
settlement agreement that we executed with Sierra Club. We solicit
comments on all these proposals.
In addition to the proposals required under our final settlement
agreement with Sierra Club, we are also proposing to revise a provision
concerning reporting of SSM events which we adopted in the previous
rulemaking in response to comments we received. We have concluded that
the new language we adopted was unnecessarily broad in its scope and we
are proposing to substantially narrow its applicability.
During the previous rulemaking concerning revisions to the General
Provisions and section 112(j) rules, we received comments from STAPPA/
ALAPCO indicating that it would assist permitting agencies in
performing their oversight function if facilities were required to
include the number and a description of all malfunctions that occurred
during the prior reporting period in the required semiannual report.
See Docket A-2001-02. In response to that comment, we added a new
reporting obligation to the language governing periodic SSM reporting
in 40 CFR 63.10(d)(5)(i). However, the language we added was not
limited to malfunctions and required that the facility report ``the
number, duration, and a brief description of each startup, shutdown,
and malfunction.'' We have concluded that the inclusion of startups and
shutdowns in this reporting requirement is unnecessary and burdensome.
With respect to malfunctions, the rule expressly requires that the
SSM plan must be revised by the facility if there is an event meeting
the characteristics of a malfunction which is not addressed by the plan
(40 CFR 63.6(e)(3)(vii). Although the facility is required by 40 CFR
63.6(e)(3)(iv) to immediately report those instances where the actions
it takes are not in conformity with the SSM plan and the standard is
exceeded, this provision may not be sufficient to give the permitting
authority all the information it needs to assure that SSM plans
properly address all types of malfunctions. Thus, we think that the
requirement that the owner or operator report the number, duration, and
type of malfunctions which occurred during the prior reporting period
may provide useful information to the permitting authority.
We recognize that some sources are concerned that the requirement
to periodically report malfunctions may be interpreted to require
reporting of minor problems that have no impact on emissions. However,
we do not construe the provision in this manner. Under our regulations,
``malfunction'' is defined as ``any sudden, infrequent, and not
reasonably preventable failure of air pollution control and monitoring
equipment, process equipment, or a process to operate in a normal or
usual manner.'' See 40 CFR 63.2. Only those events that meet this
definition would be subject to the reporting requirement. During an
event that meets this definition, the facility is not required to
comply with otherwise applicable emission limits, and the SSM plan must
specify alternative procedures which satisfy the general duty to
minimize emissions. Minor or routine events that have no appreciable
impact on the ability of a source to meet the standard need not be
classified by the source as a malfunction, addressed in the SSM plan,
or included in periodic reports. Thus, if a source experiences a minor
problem that does not affect its ability to meet the applicable
emission standard, the problem need not be addressed by the SSM plan
and would not be a reportable ``malfunction'' under our regulations.
Unlike malfunctions, we think that the extension of this
requirement to startups and shutdowns was unwarranted. In some
industries, startup and shutdown events are numerous and routine. So
long as the provisions of the SSM plan are followed, there does not
appear to be any real utility in requiring that each individual startup
and shutdown be reported or described. In those instances where a
startup and shutdown includes actions which do not conform to the SSM
plan and the standard is exceeded, the facility is otherwise required
to promptly report these deviations from the plan. We encourage all
interested parties to comment both on our proposal to delete startups
and shutdowns from this reporting provision, and on our rationale for
the retention of the periodic reporting of malfunctions.
In addition to seeking comment on the revisions to the provisions
governing SSM plans described above, we are also requesting comment
concerning two other changes to the General Provisions which we made
during the prior rulemaking in response to industry comments. During
the prior rulemaking, the Colorado Association of Commerce and Industry
suggested that we revise the definition of ``monitoring'' in 40 CFR
63.2 to include the phrase ``or to verify a work practice standard.''
See Docket item No. IV-D-03. There are times when we must adopt a work
practice standard under CAA section 112(h) rather than an emission
standard under CAA section 112(d), and compliance with such a work
practice standard is sometimes verified by activities which may not
require ``* * * collection and use of measurement data or other
information to control the operation of a process or pollution control
device * * *'' Therefore, we thought that the suggested revision was a
sensible one. However, because the additional language was not
originally proposed by EPA, and it has been subsequently suggested that
this revision might have unintended consequences, we have decided to
take additional comment concerning the value of this language and the
effects it might have when read in conjunction with other regulatory
requirements, including other provisions of the General Provisions.
In the prior rulemaking, we also made a small change in the
language of 40 CFR 63.9(h)(2)(ii) by adding the phrase ``(or activities
that have the same compliance date)'' in response to a comment
submitted by Dow Chemical Company. See Docket item No. IV-D-19.
Although separate notices are appropriate for compliance obligations
with different compliance dates (e.g., equipment leaks versus process
vents), Dow was concerned that separate compliance reports might be
required for compliance obligations that have the same date and
requested the option of filing a single compliance status report
covering multiple compliance obligations. Because the new language in
question was not originally proposed by EPA, and some have questioned
whether it clearly achieves the intended purpose, we have decided to
request additional comment concerning the need for this change and
potential alternatives.
III. Proposed Amendments to the Section 112(j) Provisions
A. New Schedule for Part 2 Applications
The final settlement agreement which we have executed with Sierra
Club requires us to propose to replace the existing schedule for
submission of section 112(j) Part 2 applications, under which most Part
2 applications would have been due on May 15, 2004, with
[[Page 72882]]
a schedule which will establish a specific deadline for submission of
Part 2 applications for all affected sources in a given category or
subcategory. With respect to those listed categories or subcategories
for which MACT standards are scheduled to be promulgated by November
30, 2002 or by February 28, 2003, we are proposing a Part 2 application
deadline of May 15, 2003. Establishing an earlier deadline for these
sources would not be practicable because we do not anticipate
completing this rulemaking until April 2003. With respect to those
categories or subcategories for which MACT standards are scheduled to
be promulgated at a later time, we are proposing Part 2 application
deadlines which are 60 days after each respective scheduled
promulgation date. The deadlines for Part 2 applications which we are
proposing for each category or subcategory are set forth below in
Tables 1 and 2 of this preamble.
Table 1.--Section 112(j) Part 2 Application Due Dates
------------------------------------------------------------------------
Due date MACT standard
------------------------------------------------------------------------
5/15/03...................... Municipal Solid Waste Landfills
Flexible Polyurethane Foam Fabrication
Operations
Coke Ovens: Pushing, Quenching, and
Battery Stacks
Reinforced Plastic Composites Production
Semiconductor Manufacturing
Refractories Manufacturing \1\
Brick and Structural Clay Products
Manufacturing, and Clay Ceramics
Manufacturing \2\
Asphalt Roofing Manufacturing and Asphalt
Processing \3\
Integrated Iron and Steel Manufacturing
Hydrochloric Acid Production and Fumed
Silica \4\
Engine Test Facilities and Rocket Testing
Facilities \3\
Metal Furniture (Surface Coating)
Printing, Coating, and Dyeing of Fabrics
Wood Building Products (Surface Coating)
10/30/03..................... Combustion Turbines
Lime Manufacturing
Site Remediation
Iron and Steel Foundries
Taconite Iron Ore Processing
Miscellaneous Organic Chemical
Manufacturing (MON) \5\
Organic Liquids Distribution
Primary Magnesium Refining
Metal Can (Surface Coating)
Plastic Parts and Products (Surface
Coating)
Chlorine Production
Miscellaneous Metal Parts and Products
(Surface Coating) (and Asphalt/Coal Tar
Application--Metal Pipes) \3\
4/28/04...................... Industrial Boilers, Institutional/
Commercial
Boilers and Process Heaters \6\
Plywood and Composite Wood Products
Reciprocating Internal Combustion Engines
Auto and Light-Duty Truck (Surface
Coating)
8/13/05...................... Industrial Boilers, Institutional/
Commercial Boilers, and Process Heaters
\7\
Hydrochloric Acid Production \8\
------------------------------------------------------------------------
\1\ Includes Chromium Refractories Production.
\2\ Two subcategories of Clay Products Manufacturing.
\3\ Two source categories.
\4\ Includes all sources within the category Hydrochloric Acid
Production that burn no hazardous waste, and all sources in the
category Fumed Silica.
\5\ Covers 23 source categories, see Table 2 of this preamble.
\6\ Includes all sources in the three categories, Industrial Boilers,
Institutional/Commercial Boilers, and Process Heaters that burn no
hazardous waste.
\7\ Includes all sources in the three categories, Industrial Boilers,
Institutional/Commercial Boilers, and Process Heaters that burn
hazardous waste.
\8\ Includes furnaces that produce acid from hazardous waste at sources
in the category Hydrochloric Acid Production.
Table 2.--MON Source Categories
------------------------------------------------------------------------
-------------------------------------------------------------------------
Manufacture of Paints, Coatings, and Adhesives
Alkyd Resins Production
Maleic Anhydride Copolymers Production
Polyester Resins Production
Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polyvinyl Acetate Emulsions Production
Polyvinly Alcohol Production
Polyvinyl Butyral Production
Ammonium Sulfate Production--Caprolactam By-Product Plants
Quaternary Ammonium Compounds Production
Benzyltrimethylammonium Chloride Production
Carbonyl Sulfide Production
Chelating Agents Production
Chlorinated Paraffins Production
Ethylidene Norbornene Production
Explosives Production
Hydrazine Production
OBPA/1,3-Diisocyanate Production
Photographic Chemicals Production
Phthalate Plasticizers Production
Rubber Chemicals Manufacturing
Symmetrical Tetrachloropyridine Production
------------------------------------------------------------------------
We have always been reluctant to establish any timetable which
would require submission of a large number of Part 2 applications which
would in all likelihood never be acted upon by the
[[Page 72883]]
permitting authorities. Submission of Part 2 applications would
generally be a futile exercise in those instances where a final Federal
MACT standard governing the facilities in question is scheduled for
promulgation prior to the 18-month deadline for action on the
applications by the respective permitting authorities. It has been our
consistent view that requiring submission of such applications would
represent an unwarranted expenditure of private and public resources.
Thus, we are pleased that the proposed schedule under the final
settlement will permit us to avoid such a wasteful exercise unless
there are further delays in promulgation of the remaining MACT
standards. We note also that the prompt and significant consequences if
a promulgation deadline is missed will create new incentives for EPA
and the other stakeholders to assure that the agreed upon promulgation
deadlines are met.
We recognize that the proposed schedule for submission of section
112(j) Part 2 applications leaves relatively little time for sources to
prepare and submit such applications if a particular promulgation
deadline is missed. In recognition of the tight time frames, we will
try to provide prompt advance notice to affected sources and to
permitting authorities if we have reason to believe that we will not be
able to meet an impending promulgation deadline for a particular MACT
standard.
We note that the MACT standards for which we are proposing a Part 2
application deadline of May 15, 2003 are actually scheduled to be
promulgated while this rulemaking is in progress. There will be no need
to adopt a Part 2 application deadline for affected sources in any
category for which a final MACT standard has been promulgated under CAA
section 112(d) and/or (h) prior to the completion of this rulemaking.
We are proposing to state explicitly in the amendments to the section
112(j) rule that no further process to develop a case-by-case MACT
determination under section 112(j) is required for any source once a
generally applicable Federal MACT standard governing that source has
been promulgated.
The revised timetable for submission of Part 2 applications we are
proposing requires significant changes in the structure of the existing
section 112(j) rule. In contrast to the current general timetable for
Part 2 applications, which applies to all of the remaining MACT
standards which were included in the schedule adopted under CAA section
112(e)(1) and (3), we are proposing a phased timetable for Part 2
applications with different dates for sources in different categories
based on the scheduled promulgation date. We are also proposing to make
the new schedule as uniform as practicable for all affected sources in
each category or subcategory, regardless of whether the source in
question has previously requested an applicability determination under
40 CFR 63.52(e)(2)(i) or has previously obtained a case-by-case
determination under CAA section 112(g).
These proposed changes will require that the existing section
112(j) rule be substantially rewritten. In order to allow the
rulemaking process required by the final settlement agreement to
proceed expeditiously and to encourage commenters to focus on the broad
issues presented by the new approach, we are not proposing specific
regulatory text. Rather, we are providing a detailed discussion in this
preamble of the changes we are proposing to make. While we do not want
to discourage those commenters who want to propose specific regulatory
text for our consideration, we believe that comments will be most
constructive if they focus on the larger question of how the existing
rule should be restructured to achieve our proposed objectives.
When we first proposed the creation of a two-part process for
section 112(j) applications, we specified a 6-month period between the
submission of the general initial notification in the Part 1
application and the submission of more detailed supporting information
in the Part 2 application. That initial proposal was based on the
premise that every applicant would automatically be given the maximum
extension of time to supplement an incomplete application that is
authorized by CAA section 112(j)(4).
In the final rule, we observed that there is another provision in
the statute which may be reasonably construed to provide authority for
us to establish an incremental process for the submission of section
112(j) applications. The hammer provision in section 112(j)(2) itself
establishes the requirement to submit permit applications ``beginning
18 months after'' the statutory date for promulgation of a standard.
Reading this provision in context, we believe that the statute can be
reasonably construed as authorizing us to provide a period of time
after the hammer date in which the information necessary for a fully
informative section 112(j) application can be compiled. We have not
changed our view that this is a reasonable construction of the
statutory provision in question, and we are reiterating this
construction of the statute as part of our rationale for these proposed
rule amendments.
B. Requests for Applicability Determination
As we explained above, we are proposing to establish a single
uniform Part 2 application deadline for all sources in a given category
or subcategory, which is based in turn on the agreed upon promulgation
date for the MACT standard for that category or subcategory. However,
to achieve this objective it will be necessary to establish new
procedures for those affected sources which have previously submitted a
request for applicability determination under 40 CFR 63.52(e)(2)(i).
That provision establishes a process by which major sources can
request that the permitting authority determine whether or not specific
sources at their facility belong in any category or subcategory
requiring a case-by-case determination under section 112(j). All
requests for applicability determinations were due at the same time as
the section 112(j) Part 1 applications, on May 15, 2002. Under the
procedures in the current rule, a negative determination by the
permitting authority concerning such a request means that no further
action is required, while a positive determination means that the
applicant must then submit a Part 2 application within 24 months. In
order to adopt the single uniform deadline for Part 2 applications for
each affected source in a category or subcategory which we are required
to propose by the final settlement, it is necessary to amend the
provisions governing requests for applicability determinations.
We lack precise information concerning how many such requests for
applicability determination were submitted to permitting authorities on
or before May 15, 2002, but we believe that hundreds of such requests
are pending. We know that some of these requests reflect genuine
uncertainty concerning the scope of the activities or equipment
governed by a particular category or subcategory. For some of these
requests, the subsequent issuance of a proposed MACT standard or other
subsequent events may have resolved such uncertainty. However, we also
believe that many of these requests were filed merely because the
filing of such a request operated to defer the deadline for submission
of a Part 2 application. Under the proposal required by the final
settlement, such an indefinite deferral of the Part 2 application
deadline will no longer be allowed.
[[Page 72884]]
We do not seek to limit the right of those affected sources who may
have genuine uncertainty regarding the scope of a particular category
or subcategory to obtain a decision on applicability issues by the
permitting authority, but we also do not want to burden the permitting
authorities with a process that requires them to take final action on
those pending requests which do not present genuine applicability
issues. Accordingly, we are proposing to require that each affected
source which still wishes to pursue a previously filed request for
applicability determination under 40 CFR 63.52(e)(2)(i) which is still
pending must resubmit and supplement that request within 60 days after
EPA publishes final action in this rulemaking or within 60 days after
EPA publishes a proposed MACT standard for the category or subcategory
in question, whichever is later.
Our experience tells us that most uncertainties regarding
applicability can be resolved by applying the specific applicability
language in the proposed MACT standard. That is why we are proposing to
delay any requirement to resubmit and supplement a request for
applicability determination until after a proposed MACT standard is
available. We are proposing to require that each resubmitted request
for an applicability determination be supplemented to specifically
discuss the relation between the source(s) in question and the
applicability provision in the proposed MACT standard for the category
or subcategory in question, and to explain why there may still be
uncertainties that require a determination of applicability. We are
also proposing to require that the permitting authority act upon each
resubmitted and supplemented request for an applicability determination
within an additional 60 days after the applicable deadline for the
resubmitted request.
We believe this approach will preserve the rights of those affected
sources which still have legitimate applicability concerns even after
issuance of a proposed MACT standard. We also expect there will be a
significant reduction in the number of pending requests, since the
current procedural incentives for submission of such requests will have
been eliminated. With respect to those requests that are resubmitted,
the proposed mandatory supplementation should delineate the issues more
clearly and improve the record for a decision concerning the request by
the permitting authority.
While we anticipate that the issuance of a proposed MACT standard
will generally operate to resolve existing applicability issues rather
than raising new ones, it is hypothetically possible that a facility
will have new questions based on the applicability provision in a
proposed MACT standard. There is at present no formal process for
addressing such issues, but we encourage all major sources that have
questions concerning the applicability of a proposed MACT standard to
their operations or equipment to seek guidance from responsible
personnel at the permitting authority and the EPA Regional Office.
We note that there are special timing issues with respect to any
requests for applicability determination which have been submitted
concerning sources that may be in a category or subcategory for which
the MACT standard in question is scheduled to be promulgated by
November 30, 2002 or by February 28, 2003. There will be no need to
address these concerns if the standards are promulgated on schedule.
However, if any one of these standards is delayed, and if the delayed
standard still has not been promulgated by the time we take final
action concerning this proposal, special procedures will be required.
Those facilities which have sources which may be in such a category or
subcategory, and who previously submitted a request for applicability
determination which is still pending, cannot be required to submit
their Part 2 application on May 15, 2003. In such an instance, we
propose that any Part 2 application will be required 120 days after EPA
publishes final action in this rulemaking if the request for
applicability determination is not resubmitted within 60 days after
publication, or within 180 days after EPA publishes final action in
this rulemaking if the request is resubmitted and a determination
concerning the request by the permitting authority is required. We
consider it improbable that we will need to adopt such procedures, but
we are proposing them now in the unlikely event they are required.
We note also that those major sources which elect to resubmit
requests for applicability determination with respect to sources that
may be governed by one of the MACT standards which are scheduled to be
promulgated by August 31, 2003, may not be entitled to receive a
determination by the permitting authority on the resubmitted request
until shortly after the scheduled promulgation date. If such a standard
is delayed, and there is no negative determination by the permitting
authority on the resubmitted request, the Part 2 application for
sources within the category in question will be due on October 30,
2003. This tight time frame underscores the importance of careful
coordination between such sources and the permitting authority if it
appears that a MACT standard will be delayed. As discussed above, EPA
will endeavor to provide timely information to affected sources and
permitting authorities if it becomes apparent that the Agency will not
meet the promulgation schedule for any of the remaining MACT standards.
C. Prior Section 112(g) Determinations
Our proposal to establish a single uniform Part 2 application
deadline for all sources in a given category or subcategory also
requires that we make some changes to the current procedures governing
CAA section 112(j) applications for those sources which have previously
received a case-by-case determination pursuant to CAA section 112(g).
In evaluating this question, it is important to understand the
substantive relationship between these separate statutory requirements.
In general, we anticipate that emission control requirements
established as part of a previous case-by-case determination under
section 112(g) will subsequently be adopted by the permitting authority
to satisfy any applicable section 112(j) requirements as well. This is
because the determination required for any sources subject to CAA
section 112(g) is supposed to be based on new source MACT, and the
subsequent application of section 112(j) requirements to those same
sources will be based on existing source MACT. Moreover, to assure that
inconsequential differences in emission control do not result in unduly
burdensome sequential case-by-case determinations, the current section
112(j) rule requires the permitting authority to adopt any prior case-
by-case determination under section 112(g) as its determination for the
same sources under section 112(j) if it ``determines that the emission
limitations in the prior case-by-case determination are substantially
as effective as the emission limitations which the permitting authority
would otherwise adopt under section 112(j).'' See 40 CFR 63.52(a)(3),
(b)(2), and (e)(2)(ii).
Under the applicable provisions of the present rule, sources which
have previously obtained a case-by-case determination under CAA section
112(g) are generally required to submit a request for an ``equivalency
determination'' to decide if the applicable section 112(g) requirements
are ``substantially as effective'' as the requirements which would
otherwise apply under section 112(j). As explained above, we believe
that this
[[Page 72885]]
determination will generally be positive. However, 40 CFR
63.52(e)(2)(ii) provides that, if such a determination is negative, the
source must then submit a Part 2 application within 24 months. As in
the case of requests for applicability determination, changes to the
existing rule will be required to place all sources in a given category
or subcategory on the same schedule for submission of Part 2
applications. However, in this instance, we believe that the solution
is considerably simpler.
We are proposing to adopt the proposed Part 2 application deadline
for a given category or subcategory as the final deadline for
submission of a request for an ``equivalency determination'' by any
affected source that previously obtained a case-by-case determination
under CAA section 112(g). Under this proposal, those sources which
submitted such requests earlier under the provisions of the existing
rule need not resubmit them. However, we are also proposing that all
requests for an equivalency determination, regardless of when they were
submitted, will be construed in the alternative as a section 112(j)
Part 2 application as well.
The effect of this proposal will be to require that the permitting
authority first make an equivalency determination. In the event of a
negative determination, the permitting authority will then proceed to
adopt a separate set of requirements pursuant to section 112(j). Under
this proposal, this process will be completed in the same 18-month
period that applies to the processing of all other Part 2 applications.
This proposal will assure that the deadline for submission of Part
2 applications will be the same for all affected sources within a
category or subcategory, regardless of whether a source previously
obtained a case-by-case determination under section 112(g). We do not
think this proposal imposes any new burden on sources or permitting
authorities, because the permitting authority should already have all
of the information required for a Part 2 application in any instance
where it is already administering section 112(g) requirements
applicable to the same source.
D. Content of Part 2 Applications
We are hopeful that no source will be required to submit a section
112(j) Part 2 application under the schedule we are proposing in this
rulemaking. We also note that the Part 2 application requirements in
the current section 112(j) rule are significantly narrower than the
application requirements in the original section 112(j) rule. However,
in the event that some Part 2 applications must ultimately be
submitted, we think it is appropriate to give some additional guidance
concerning the information they must contain and to request comment on
a few related issues.
We believe that an affected source submitting a Part 2 application
may elect to rely directly on the content of the applicable proposed
MACT standard in identifying affected emission points. We also think
that applicants may reasonably limit the information they submit
concerning HAP emissions to those specific HAP or groups of HAP which
would be subject to actual control in the applicable proposed MACT
standard. We encourage all section 112(j) Part 2 applicants to utilize
the regulatory approach in the applicable proposed MACT standard as a
practical template in compiling Part 2 applications. We also encourage
applicants who have previously submitted to the permitting authority
some of the information required in the Part 2 application to meet the
requirements in question by cross-referencing such prior submissions.
Moreover, although the submission by an affected source of a
proposed case-by-case MACT determination as part of its Part 2
application is entirely discretionary, we note that some industry
representatives have stated that they would generally elect to include
such information as a precautionary matter. While we do not seek to
discourage this practice, we believe that the burden associated with
inclusion of such information will not be significant in instances
where a Federal MACT standard has already been proposed, the applicable
proposed standard has already been evaluated by the facility, and the
facility has already had an opportunity to comment on the applicable
proposed standard.
We also want to do whatever we can to minimize any unnecessary
burdens associated with submission of a Part 2 application. We do not
want to require the submission of any information which is not truly
necessary to prepare for potential issuance of case-by-case MACT
determinations. To that end, we are requesting comment on the approach
outlined above and whether there may be other ways to minimize any
unnecessary burden. We also request comments on the following specific
questions. Does the applicant need to provide ``estimated total
uncontrolled and controlled emission rates'' to enable the permitting
authority to prepare for a potential case-by-case determination? If the
applicant does not have the information required to provide meaningful
estimates of emission rates, should new emission testing be required?
Is it appropriate to require individual applicants to submit
``information relevant to establishing the MACT floor'' in their Part 2
applications? Are there any Part 2 application requirements which can
be met simply by referring to the applicable proposed MACT standard?
IV. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
We have determined that neither the proposed amendments to the
General Provisions nor the proposed amendments to the section 112(j)
rule are a ``significant regulatory action'' under the terms of
Executive Order 12866, and this proposal was therefore not submitted to
OMB for review.
B. Executive Order 13132, Federalism
Executive Order 13132, entitled, ``Federalism (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and States, or on the distribution of power and
responsibilities among the various levels of government.''
[[Page 72886]]
These proposed amendments do not have Federalism implications under
the terms of this Executive Order. We do not believe that the proposed
changes in the General Provisions rule have any significant federalism
implications. With respect to the alteration in the schedule for
submission of section 112(j) Part 2 applications, we note that the CAA
itself requires that State and local permitting authorities receive and
process applications for case-by-case MACT determinations pursuant to
section 112(j). This is one of the responsibilities that State and
local permitting authorities have agreed to assume. We have tried to
construe the statutory provisions in question in a manner that
minimizes the burden on these agencies associated with this
responsibility. We have determined that the proposed change in the
schedule for submission of such applications does not itself have a
substantial direct effect on the States, on the relationship between
the national government and States, or on the distribution of power and
responsibilities among the various levels of government.
Nevertheless, in the spirit of Executive Order 13132 and consistent
with EPA policy to promote communications between EPA, State, and local
governments, EPA specifically solicits comment on these proposed
amendments from State and local officials.
C. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (59 FR 22951, November 6, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
These proposed amendments to the General Provisions and the section
112(j) rule would not have tribal implications. They would not have
substantial direct effects on tribal governments, or on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There are currently no tribal governments that have approved title V
permit programs to which sources would submit case-by-case permit
applications under section 112(j). Accordingly, Executive Order 13175
would not apply to this action.
D. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives that EPA considered.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. These amendments are not
subject to Executive Order 13045 because they are amending information
collection requirements and do not affect health or safety risks.
Furthermore, this rule has been determined not to be ``economically
significant'' as defined under Executive Order 12866.
E. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
These proposed amendments are not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because they
are not a significant regulatory action under Executive Order 12866.
F. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and on the private sector. Under section 202 of the UMRA,
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, and tribal
governments, in aggregate, or by the private sector, of $100 million or
more in any 1 year. Before promulgating an EPA rule for which a written
statement is needed, section 205 of the UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least-costly, most cost-effective, or least-burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows EPA to adopt an alternative other
than the least-costly, most cost-effective, or least-burdensome
alternative if the Administrator publishes with the final rule an
explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA's regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
The EPA has determined that these proposed amendments do not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, in any 1 year. We do not expect annual expenditures by
State, local and tribal governments in connection with implementation
of these amendments to exceed $100 million. In any case, any obligation
of State or local permitting authorities to take particular actions
under these proposed amendments is not directly enforceable by a court
of law, and any failure by a State or local permitting authority to
meet such an obligation would at most result in a determination that
the permitting authority is not adequately administering its permit
program under CAA section 502(i). Thus, it can be argued that such
obligations are not enforceable duties within the meaning of section
421(5)(A)(i) of UMRA, 2 U.S.C. 658(5)(A)(i). Moreover, even if such
obligations were deemed to be enforceable duties, such duties might be
viewed as falling within the exception for a condition of Federal
assistance
[[Page 72887]]
under section 421(5)(A)(i)(I), 2 U.S.C. 658(5)(A)(i)(I).
We have also determined that the proposed amendments will not
result in expenditures by the private sector of $100 million in any 1
year. We fully expect to promulgate the remaining MACT standards on or
near schedule, eliminating the need for sources to prepare and submit
section 112(j) Part 2 applications. We recognize that some sources may
choose to begin preparing the Part 2 application, but cannot estimate
the total expenditures this would entail, although we believe it to be
only a small fraction of the $100 million criterion. We also expect
relatively few resubmissions of applicability determination requests.
In any case, all such resubmissions will be done at the source's
discretion, and we expect the aggregate expenditure on them to be
small.
Based on these determinations, today's proposed amendments are not
subject to the requirements of sections 202, 203, and 205 of the UMRA.
G. Regulatory Flexibility Act (RFA) as Amended by Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any proposed rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's amendments on
small entities, small entity is defined as: (1) A small business as
defined in each applicable subpart, as defined by the Small Business
Administration; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. We have determined
that the proposed amendments to the General Provisions would not
themselves cause any economic impacts on small entities. Rather, any
economic impacts on small entities would be associated with the
incorporation of specific elements of the General Provisions in the
individual MACT standards which are promulgated for particular source
categories.
We believe that adoption of the proposed amendments will not lead
to a substantial impact on small entities through the incorporation of
the General Provisions in individual MACT standards. For most MACT
standards, we anticipate that any affected facilities will not be small
entities. For those MACT standards where small entities would be
affected, we believe any economic impact will be minimal since the only
specific action which may be required is the submission to the
permitting authority of an existing document which has already been
prepared and is on file at the source.
We also have not prepared any regulatory flexibility analysis for
the proposed amendments to the section 112(j) rule. At this time, we do
not expect that any Part 2 applications will have to be submitted or
case-by-case determinations will have to be made under section 112(j)
and thus no small businesses would be affected by such determinations.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
H. Paperwork Reduction Act
As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., the OMB must clear any reporting and recordkeeping requirements
that qualify as an information collection request (ICR) under the PRA.
Approval of an ICR is not required in connection with the proposed
amendments to the General Provisions rule. This is because the General
Provisions do not themselves require any reporting and recordkeeping
activities, and no ICR was submitted in connection with their original
promulgation or their subsequent amendment. Any recordkeeping and
reporting requirements are imposed only through the incorporation of
specific elements of the General Provisions in the individual MACT
standards which are promulgated for particular source categories. In
any case, we believe that adoption of the proposed amendments will not
materially alter the burden imposed on affected sources through the
incorporation of the General Provisions in individual MACT standards.
We anticipate that any incremental changes in the recordkeeping and
reporting burden estimate for individual MACT standards will be
addressed in the context of the periodic renewal process required by
the PRA.
Approval is also not required for the proposed amendments to the
section 112(j) rule. We expect to promulgate all remaining MACT
standards before the Part 2 application due dates associated with those
standards (see Table 1 of this preamble), which would eliminate the
need for sources to submit the Part 2 application. Approval is also not
necessary for resubmission of applicability determination requests. We
expect there to be few resubmissions, and all of these will be entirely
at the sources' discretion; the rule does not require submission or
resubmission of such requests. Thus we do not project any recordkeeping
or reporting burden to be incurred by sources as a result of these
amendments.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
I. National Technology Transfer and Advancement Act of 1995
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA) of 1995 (Public Law No. 104-113), all Federal
agencies are required to use voluntary consensus standards (VCS) in
their regulatory and procurement activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices)
developed or adopted by one or more voluntary consensus bodies. The
NTTAA requires Federal agencies to provide Congress, through annual
reports to OMB, with
[[Page 72888]]
explanations when an agency does not use available and applicable
voluntary consensus standards.
These proposed amendments do not involve technical standards.
Therefore, EPA is not considering the use of any VCS.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: December 3, 2002.
Christine Todd Whitman,
Administrator.
For the reasons cited in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
2. Section 63.6 is amended by:
a. Revising paragraph (e)(1)(i);
b. Adding 6 sentences to the beginning of paragraph (e)(3)(v); and
c. Revising the introductory text to paragraph (e)(3)(vii).
The revisions and additions read as follows:
Sec. 63.6 Compliance with standards and maintenance requirements.
* * * * *
(e) * * *
(1)(i) At all times, including periods of startup, shutdown, and
malfunction, owners or operators must operate and maintain any affected
source, including associated air pollution control equipment and
monitoring equipment, in a manner consistent with safety and good air
pollution control practices for minimizing emissions to the levels
required by the relevant standards. Determination of whether acceptable
operation and maintenance procedures are being used will be based on
information available to the Administrator which may include, but is
not limited to, monitoring results, review of operation and maintenance
procedures (including the startup, shutdown, and malfunction plan
required in paragraph (e)(3) of this section), review of operation and
maintenance records, and inspection of the source.
* * * * *
(3) * * *
(v) The owner or operator must submit to the Administrator a copy
of the startup, shutdown, and malfunction plan at the time it is first
adopted. The owner or operator must also submit to the Administrator a
copy of any subsequent revisions of the startup, shutdown, and
malfunction plan. Such revisions must be submitted at the time they are
adopted if the revisions are required in order to adequately address an
event involving a type of malfunction not included in the plan, or the
revisions alter the scope of the activities at the source which are
deemed to be a startup, shutdown, or malfunction, or otherwise modify
the applicability of any emission limit, work practice requirement, or
other requirement in a standard established under this part. All other
revisions to the startup, shutdown, and malfunction plan may be
submitted with the semiannual report required by Sec. 63.10(d)(5). The
owner or operator may elect to submit the required copy of the initial
startup, shutdown, and malfunction plan, and of all subsequent
revisions to the plan, in an electronic format. If the owner or
operator claims that any portion of a startup, shutdown, and
malfunction plan, or any revision of the plan, submitted to the
Administrator is confidential business information entitled to
protection under section 114(c) of the CAA or 40 CFR 2.301, the
material which is claimed as confidential must be clearly designated in
the submission. * * *
* * * * *
(vii) Based on the results of a determination made under paragraph
(e)(1)(i) of this section, the Administrator may require that an owner
or operator of an affected source make changes to the startup,
shutdown, and malfunction plan for that source. The Administrator must
require appropriate revisions to a startup, shutdown, and malfunction
plan, if the Administrator finds that the plan:
* * * * *
3. Section 63.10 is amended by revising the second sentence of
paragraph (d)(5)(i) to read as follows:
Sec. 63.10 Recordkeeping and reporting requirements.
* * * * *
(d) * * *
(5)(i) * * * Reports shall only be required if a startup, shutdown,
or malfunction occurred during the reporting period, and they must
include the number, duration, and a brief description of each
malfunction. * * *
* * * * *
[FR Doc. 02-31012 Filed 12-6-02; 8:45 am]
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